USA v. Ricardo Perez-Torres

Filing 511158771

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USA v. Ricardo Perez-Torres Doc. 511158771 Case: 09-40949 Document: 00511158771 Page: 1 Date Filed: 06/29/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-40949 S u m m a r y Calendar June 29, 2010 Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA, P la in t if f A p p e lle e , v. R I C A R D O PEREZ-TORRES, D e fe n d a n t A p p e lla n t . A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 6:09-CR-21-1 B e fo r e GARZA, CLEMENT, and OWEN, Circuit Judges. P E R CURIAM:* R ic a r d o Perez-Torres appeals the sentence imposed following his jury c o n v ic t io n on three counts of transporting illegal aliens within the United States b y means of a motor vehicle in violation of 8 U.S.C. 1324(a)(1)(A)(ii) and (a )(1 )(B )(ii). He contends that the district court plainly erred by not reducing his o ffe n s e level pursuant to U.S.S.G. 2L1.1(b)(1) because the evidence at trial and t h e facts in the presentence report were insufficient to support a finding that the o ffe n s e s were committed for profit. Because Perez-Torres did not object to the Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. * Case: 09-40949 Document: 00511158771 Page: 2 No. 09-40949 Date Filed: 06/29/2010 la c k of a 2L1.1(b)(1) reduction in the district court, we review for plain error. See United States v. Alvarado-Santilano, 434 F.3d 794, 795 (5th Cir. 2005). T h e Government was not required to show, either at trial or at sentencing, t h a t the alien transportation offenses were committed for profit. See United S ta te s v. Cuellar-Flores, 891 F.2d 92, 93 (5th Cir. 1989).. Rather, in order to q u a lify for the 2L1.1(b)(1) reduction, Perez-Torres bore the burden of showing t h a t the offenses were committed other than for profit. See id. The record shows that the aliens made arrangements with unknown in d iv id u a ls to be smuggled into the United States and taken to Houston, Texas, in exchange for $1,200 or $ 1,300. After crossing into the United States, a guide le d the aliens to a Valero gas station in Alice, Texas. The aliens were told to w a it at the station and that someone would pick them up. Approximately 15 to 2 0 minutes later, Perez-Torres arrived at the Valero station and told the aliens t o get into his vehicle. The aliens expected to pay the smuggling fee following t h e ir arrival in Houston. Nothing about these facts or any other evidence p r e s e n t e d at trial supports an inference that Perez-Torres transported the aliens fo r any reason other than profit. Further, although there was no direct evidence t h a t Perez-Torres was paid or was going to be paid for transporting the aliens t o Houston, there was circumstantial evidence that he knowingly participated in an alien smuggling operation in which other members either received or e x p e c t e d to receive money. Thus, a finding that the alien transportation offenses w e r e committed for profit is plausible in light of the record read as a whole and n o t clearly erroneous. See United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5 t h Cir. 2008). Moreover, whether Perez-Torres transported the aliens for profit is a factual question that could have been resolved by the district court had P e r e z - T o r r e s raised the proper objection. See Cuellar-Flores, 891 F.2d at 93. Because Perez-Torres failed to object to the presentence report on this basis, he h a s not demonstrated that the district court plainly erred by not reducing his 2 Case: 09-40949 Document: 00511158771 Page: 3 No. 09-40949 Date Filed: 06/29/2010 o ffe n s e level pursuant to 2L1.1(b)(1). See United States v. Lopez, 923 F.2d 47, 5 0 (5th Cir. 1991). Accordingly, the district court's judgment is AFFIRMED. 3

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